Ryder et al v. Union Pacific Railroad Company et al

Filing 207

RULING granting 84 Motion for Partial Summary Judgment on Plaintiff's Lights and Gates Claims and 170 Motion for Partial Summary Judgment on Plaintiff's inadequate Audible Warning Claims. Signed by Judge Shelly D. Dick on 9/29/2017. (LLH)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA
MICHAEL TODD RYDER, ET AL
CIVIL ACTION
VERSUS
15-431-SDD-EWD
UNION PACIFIC RAILROAD COMPANY
RULING
Before the Court are two Motions for Partial Summary Judgment1 filed by
Defendant, Union Pacific Railroad Company (“UP”). Plaintiffs filed Oppositions2, to which
Defendant filed Replies.3 Intervenors, Pipeline Construction & Maintenance, Inc., and
Zurich North American Insurance Company, (“Intervenors”), also filed Oppositions4
adopting the arguments made by Plaintiffs. For the following reasons, the Court finds that
Defendant’s motions should be granted.
I.

FACTUAL BACKGROUND
This lawsuit arises out of a train car collision that occurred on February 16, 2015

which resulted in three fatalities.5 The collision occurred at United States DOT Grade
Crossing No. 755983T in De Soto Parish, Louisiana, between a pickup truck driven by
John Cameron Watson (“Watson”) and a UP train.6
The crossing at issue intersected Private Drive, a private gravel driveway, leading
to a pipeline jobsite.7 To gain access to the job site, vehicles traveling on Louisiana

1

Rec. Doc. Nos. 84 and 170.
Rec. Doc. Nos. 187 and 179.
3
Rec. Doc. Nos. 183 and 189.
4
Rec. Doc. Nos. 175 and 188.
5
Rec. Doc. No. 1, p. 5, ¶23; p. 6, ¶31.
6
Rec. Doc. No. 1, p. 5, ¶24, 26, 30.
7
Rec. Doc. No. 1, p. 5, ¶26.
2

40827 
Page 1 of 19 

Highway 5 turn east onto Private Drive.8 After turning onto Private Drive, there is
approximately seventy (70) feet of gravel road on the western side of the railroad tracks
and eighty-five (85) feet of gravel road on the eastern side of the tracks, leading to a
locked gate providing access to the jobsite.9 After crossing the tracks, vehicles would
have to stop and unlock the gate manually before proceeding on to the jobsite.10
On the date of the accident, Watson and his two passengers, Michael Todd Ryder,
II, and Herbert Paul Barras, III, were returning to the job site after lunch.11 Watson was
the last in line of four vehicles waiting for the gate to be manually unlocked to gain access
to the job site.12 Due to the preceding vehicles, Watson’s vehicle did not fit in the eightyfive (85) feet of roadway between the crossing and the jobsite gate.13 Instead of stopping
within the seventy (70) feet of gravel drive available in advance of the crossing, Watson
pulled behind the third vehicle in line at the gate, with his vehicle straddling the crossing.14
At the same time, a UP train approached the crossing traveling in a southbound
direction.15 UP engineer, Kenneth Charles, sounded the locomotive horn while
approaching the crossing to warn the vehicle on the tracks.16 Watson failed to move his
vehicle to a position of safety to avoid the collision. All three occupants of the vehicle
were killed in the collision.17
Plaintiffs brought suit against various Defendants including UP, alleging inter alia,

8

Id.
Id.
10
Id.
11
Id., ¶ 24-25.
12
Id.
13
Id. at p. 6., ¶28.
14
Id.
15
Id., ¶29.
16
Rec. Doc. No. 170-2, p. 8.
17
Rec. Doc. No. 1, p. 6, ¶31.
9

40827 
Page 2 of 19 

that UP was negligent in failing to install lights and gates or other additional warning
devices at the subject railroad crossing.18 Additionally, Plaintiffs allege that UP failed to
ensure the horn on the locomotive complied with Federal Law, failed to use an emergency
horn sequence (which Plaintiffs contend is a series of short horn blasts), and failed to
instruct its employees about the deficiencies in train mounted audile warning systems,
and the safety issues caused by those problems.19
UP moves this Court to dismiss those claims pertaining to the installation of
additional warning devices on the basis that Plaintiffs cannot establish either a duty or
causation.20 UP also moves to dismiss those claims pertaining to inadequate audible
warning based on federal preemption.21 In opposition, Plaintiffs argue that several
conditions of the crossing made it unreasonably dangerous giving rise to an extra
statutory duty on UP to provide additional warnings at the crossing.22 As to the inadequate
audible warning claim, Plaintiffs argue that UP’s testing of the locomotive horn was not in
compliance with federal regulations, and the engineer failed to use an emergency horn
sequence.23
II.

LAW AND ANALYSIS
A. Summary Judgment Standard
“The court shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

18

Rec. Doc. No. 1, pp. 6-16, ¶32-53.
Rec. Doc. No. 1, p 7, ¶1.
20
Rec. Doc. No. 84-1, p. 1.
21
Rec. Doc. No. 170, p. 2, ¶3.
22
Rec. Doc. No. 187, pp. 3-9.
23
Rec. Doc. No. 179, pp. 2-10.
19

40827 
Page 3 of 19 

of law.”24 “When assessing whether a dispute to any material fact exists, we consider all
of the evidence in the record but refrain from making credibility determinations or weighing
the evidence.”25 A party moving for summary judgment “must ‘demonstrate the absence
of a genuine issue of material fact,’ but need not negate the elements of the nonmovant’s
case.”26 If the moving party satisfies its burden, “the non-moving party must show that
summary judgment is inappropriate by setting ‘forth specific facts showing the existence
of a genuine issue concerning every essential component of its case.’”27 However, the
non-moving party’s burden “is not satisfied with some metaphysical doubt as to the
material facts, by conclusory allegations, by unsubstantiated assertions, or by only a
scintilla of evidence.”28
Notably, “[a] genuine issue of material fact exists, ‘if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’”29 All reasonable factual
inferences are drawn in favor of the nonmoving party.30 However, “[t]he court has no duty
to search the record for material fact issues. Rather, the party opposing the summary
judgment is required to identify specific evidence in the record and to articulate precisely
how this evidence supports his claim.”31 “Conclusory allegations unsupported by specific
facts … will not prevent the award of summary judgment; ‘the plaintiff [can]not rest on his

24

Fed. R. Civ. P. 56(a).
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008).
26
Guerin v. Pointe Coupee Parish Nursing Home, 246 F.Supp. 2d 488, 494 (M.D. La. 2003) (quoting Little
v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(en banc) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 323-25 (1986)).
27
Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 247 (5th Cir. 2003) (quoting Morris v. Covan World
Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir. 1998)).
28
Willis v. Roche Biomedical Labs, Inc., 61 F.3d 313, 315 (5th Cir. 1995) (quoting Little, 37 F.3d at 1075).
29
Pylant v. Hartford Life and Accident Ins. Co., 497 F.3d 536, 538 (5th Cir. 2007) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
30
Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985).
31
RSR Corp. v. Int’l Ins. Co., 612 F.3d 851, 857 (5th Cir. 2010).
25

40827 
Page 4 of 19 

allegations … to get to a jury without any “significant probative evidence tending to
support the complaint.”’”32
B. Duty of a Railroad to Install Warning Devices at Private Crossings
Plaintiffs have alleged several violations of Louisiana state law regarding the
installation of additional warning devices at the subject crossing.33 “As a general rule,
under the Erie doctrine, when a plaintiff asserts a state law claim in the federal court, the
[c]ourt looks to state law in determining the substantive law that governs the claims…”34
In this case, Louisiana law applicable to warning devices at Railroad Grade Crossings
can be found in La. R.S. 32:169, which provides that railroads must erect and maintain
“Railroad Cross Buck” signs at all public railroad crossings.35 The railroad also has the
duty to maintain its right-of-way adjacent to the railroad tracks.36 Specifically, Louisiana
law requires the railroad to make sure that vegetation and other structures that may
obstruct the view of motorists is cleared for a distance of fifty (50) feet in width and three
hundred (300) feet in length of either side of the crossing.37 Once a railroad has complied
with its statutory obligations, a railroad may have additional duties to warn motorists to
the presence of the crossing if it is shown that the crossing constitutes a “dangerous trap.”
The Louisiana First Circuit Court of Appeal discussed the “dangerous trap” doctrine in

32

Nat’l Ass’n of Gov’t Emp.’s v. City Pub. Serv. Bd., 40 F.3d 698, 713 (5th Cir. 1994) (quoting Anderson,
477 U.S. at 249).
33
Plaintiffs also allege UP violated 23 C.F.R. §646. 214(b)(3)(i). However, applicable case law provides
that UP cannot, as a matter of law, fail to comply with 23 C.F.R. 646.214(b)(3). See Henning v. Union Pac.
R. R. Co., 530 F.3d 1206, 1215 (8th Cir. 2008). Thus, Plaintiffs claim that UP violated 23 C.F.R.
646.214(b)(3)(i) is DISMISSED as a matter of law.
34
Garza v. Scott & White Mem. Hosp., 234 F.R.D. 617, 621 (W.D. Tex. 2005) (citing Hall v. GE Plastic Pac.
PTE, Ltd., 327 F.3d 391, 394 (5th Cir.2003)).
35
La. R.S. 32:169(A).
36
Rivere v. Union Pac. R.R. Co., 93-1132 (La. App. 1 Cir. 10/7/94), 647 So. 2d 1140, 1145, writ denied,
95-0292 (La. 3/24/95); 651 So. 2d 295.
37
La. R.S. 48:386.1(A).

40827 
Page 5 of 19 

Rivere v. Union Pacific Railroad Co. as follows:
Any other duties of the railroad with regard to further safety devices rises in
proportion to the increasing dangerousness of the crossing, as determined
by an approaching vehicle's ability to see the oncoming train. This concept
is referred to as the “dangerous trap” doctrine. A crossing is considered a
“dangerous trap” when it is unusually dangerous because the view of the
motorist is so obstructed as to require that he place himself in a position of
peril dangerously near the tracks, before he has a view of the oncoming
train. When a dangerous trap exists, the railroad company will be held liable,
unless it can show that it took unusual precautions, such as reducing the
speed of the train, or increasing its warning or providing signaling devices,
etc.38
Louisiana law also places an obligation on motorists to yield to approaching
trains.39 When approaching a railroad crossing, identified by a cross buck sign, a motorist
must slow down to a reasonable speed considering the existing conditions or must stop
if necessary “where the driver or operator has a clear view of any approaching train.”40
The parties are in agreement that there is no statutory duty under Louisiana law
for railroads to install lights and gates at private railroad crossings.41 The parties also
agree that the railroad crossing in question is a private crossing. It is also undisputed that
the subject crossing was marked with a railroad cross buck and stop sign on the date of
the accident. Plaintiffs provide undisputed summary judgment evidence that UP internally
changed the categorization of the subject crossing as ‘private with public characteristics’
a few years prior to the accident.42 The Court finds that it is clear from the evidence
presented that, as to the advance warnings, UP complied with Louisiana law for public

38

Rivere, 647 So. 2d at 1145; citing Glisson v. Missouri Pac. R.R. Co., 158 So. 2d 875 (La. App. 3rd
Cir.1963). See also Davis v. Canadian Nat. Ry., 2013-2959 (La. 4/17/14); 137 So. 3d 11.
39
La. R.S. 32:171(E).
40
La. R.S. 32:175(A).
41
Rec. Doc. No. 63, p. 1-2.
42
Rec. Doc. No. 187-11; Rec. Doc. 187-12; Rec. Doc. 187-13.

40827 
Page 6 of 19 

crossings, despite the crossing being private, by placing the appropriate cross buck sign
in accordance with La. R.S. 32:169.43
The record indicates that there were no obstructions in either direction of the
tracks.44 Photographs of the crossing reveal a completely unobstructed view of the train
as it approached the crossing.46 Nicholas Courteaux (“Courteaux”), the driver of the truck
directly in front of Watson, testified that Watson stopped behind Courteaux, who was
stopped just East of the tracks, while waiting on the gate to the private property to be
unlocked.47 Darius Carroll (“Carroll”), the conductor of the UP locomotive, testified that
when he could first see the vehicles, the last vehicle was close to the track but not on it.48
After the engineer started blowing the horn, Carroll observed the truck pull all the way
onto the tracks.49 Plaintiffs’ complaint provides that there was eighty five (85) feet of gravel
road from the crossing to the locked fence and seventy (70) feet of gravel road on the
approach between the highway and the crossing.50 The evidence is clear that if Watson
would have heeded the cross buck and stop sign on the East side of the crossing, he
would have had a clear line of sight of the approaching locomotive. Additionally, there
was nothing preventing him from backing up off of the tracks in order to avoid the collision.
While the facts of this case present a tragic accident, there seems to be no explanation
as to why Watson decided to stop his vehicle on the tracks while waiting for the gate to

43

Rec. Doc. No. 84-1 p. 2; Rec. Doc. No. 84-2; Rec. Doc. No. 84-5 p. 8, 9.
Rec. Doc. No. 84-5 p. 3, lines 1-3. Deposition testimony of Luke Hebert (“Hebert”), one of the contractors
working at the site on the day of the accident.
46
Rec. Doc. No. 84-1, p. 2. Hebert confirmed that the pictures of the crossing presented at his deposition
reflected the state of the crossing on the date of the accident.
47
Rec. Doc. No. 84-3, p. 7-10.
48
Rec. Doc. No. 84-4, p. 2-3.
49
Id.
50
Rec. Doc. No. 1, p. 5, ¶26.
44

40827 
Page 7 of 19 

be unlocked.
Plaintiffs argue that the following alleged conditions, or combination of conditions,
render the subject railroad crossing unreasonably dangerous: high speed trains; loud oil
field equipment and commercial truck traffic; non-compliant vegetation and a bend in the
track which prevents motorists from seeing oncoming trains; unguarded crossing; lack of
crossing agreement for non-compliant vegetation and signage; and short storage due to
adjacent highway and a gate which can cause oil field traffic to become backed up on the
crossing.51 In support of these arguments, Plaintiffs offer the affidavits of Alan J.
Blackwell,52 Joellen Gill,53 and William R. Hughes.54 The Rule 26 report55 of Joellen Gill
is attached to each affidavit.56 Each affiant attests to the opinions and findings of the Gill
report which opines that the crossing in question was unreasonably dangerous for those
reasons listed above. Specifically, the report opines that five conditions of the crossing
(unguarded crossing, high speed trains, short storage,57 commercial truck traffic, and lack
of crossing agreement) gave rise to a duty on UP to implement additional warning devices
beyond those present on the date of the accident. Furthermore, Plaintiffs point to UP’s

51

Rec. Doc. No. 187, p. 3-4.
Rec. Doc. No. 187-3.
53
Rec. Doc. No. 187-4.
54
Rec. Doc. No. 187-5.
55
Rec. Doc. No. 187-3, p. 9-28.
56
In its reply brief, UP objects to the affidavits of Alan Blackwell and William Hughes as experts because
they did not submit individual expert reports before the expert report deadline of May 30, 2017. UP objects
insofar as Blackwell and Hughes were not signatories to the Gill report and therefore are not in compliance
with Fed. R. Civ. P. 26(a)(2)(B). UP also objects to the Report and Affidavit of Joellen Gill insofar as she
lacks the qualification to give an opinion on the condition of the railroad crossing. However, UP has not filed
a Motion in Limine or Daubert motion challenging same. Therefore, the Court will not exclude the affidavits
or the report on this basis.
57
The report categorizes “short storage” as the distance on both sides of the tracks of the gravel road
leading from LA HWY 5 to the locked access gate. In other words, the 70 feet of road before the crossing
and the 85 feet after the crossing when approaching the locked gate.
52

40827 
Page 8 of 19 

knowledge of a collision in 200858 and a near miss in 200959 as additional factors requiring
additional warning devices at the crossing. Finally, Plaintiffs suggest the type of additional
advance warnings UP could have implemented such as a contract flagger or other low
cost warning devices based on the use of the crossing. Even considering all of the
conditions and all of the evidence submitted by Plaintiff as true, there is no summary
judgment evidence to show that Watson had to place himself in a position of peril in order
to see an oncoming train.
Plaintiffs suggest that this Court should apply a different theory which would
impose a duty on railroads to provide additional warning devices other than when the
crossing is considered a “dangerous trap.” In support of this argument, Plaintiffs cite to
the Louisiana Supreme Court case of Duncan v. Kansas City Southern Railway.60
Plaintiffs assert that the Duncan court imposes a duty on railroads to provide additional
warnings when the crossing presents a “unique and local safety hazard.”61 However, the
language Plaintiffs cite to in Duncan was verbiage contained in an expert report.62 The
Duncan court merely stated that based on the expert testimony, “the jury could have
reasonably concluded that [the railroad] had a duty to plaintiffs to protect against the
unique hazard presented by the [crossing].”63 Since the court did not explain what the
unique hazard was or what the requisite duty required, this statement by the court is mere
dictum and does not present an alternate theory of imposing any additional duty on a

58

Rec. Doc. No. 187-9.
Rec. Doc. No. 187-10.
60
773 So. 2d 670 (La. 2000).
61
Id. at 677.
62
Id.
63
Id.
59

40827 
Page 9 of 19 

railroad.64 The Duncan court analyzed and ultimately found that the railroad had breached
its duty to keep their right-of-way clear so that there were no sight deficiencies for drivers
stopped at a stop sign.65 Thus, the Duncan court applied the “dangerous trap” doctrine
when it found the duty breached by the railroad required motorists to place themselves in
a position of peril in order to see oncoming trains. The undisputed facts of this case show
that the crossing in question was void of any sight deficiencies. As such, this Court
declines Plaintiffs invitation to recognize an additional theory, namely “unique and local
safety hazard,” to impose extra statutory advance warning duties on the railroad. The
Court will analyze whether UP had additional duties to warn based on the application of
the “dangerous trap” doctrine.
Defendant cites numerous cases applying the “dangerous trap” doctrine that were
decided in the railroad’s favor. In Holland v. Norton,66 the court granted summary
judgment in favor of the railroad because evidence showed there were no obstructions
and the motorist could have placed himself in a position where he could have clearly seen
down the entire length of the track. In Benavidez v. Kansas City Southern Railway,67 the
court granted summary judgment in favor of the railroad, concluding that the public
crossing was not a “dangerous trap” because the motorist had sufficient vision down the
track a distance of a couple of car lengths.

64

“A statement is dictum if it could have been deleted without seriously impairing the analytical foundations
of the holding and being peripheral, may not have received the full and careful consideration of the court
that uttered it. A statement is not dictum if it is necessary to the result or constitutes an explanation of the
governing rules of law.” U.S. v. Segura, 747 F.3d 323, 328 (5th Cir. 2014).
65
773 So. 2d at 677 (La. 2000).
66
70 F.Supp. 2d 666 (E.D. La. 1999).
67
No. 3:11-CV-1263, 2012 WL 2499495 (W.D. La. June 27, 2012).

40827 
Page 10 of 19 

In Rivere v. Union Pacific Railroad,68 the court overturned the district court’s finding
of a percentage of fault on the railroad because the plaintiff did not have to place himself
in a position of peril to view the tracks. Most recently, the Louisiana Supreme Court in
Davis v. Canadian National Railway69 upheld the trial court’s decision in granting
summary judgment in favor of a railroad when applying the “dangerous trap” doctrine. In
Davis, the plaintiff’s mother was killed by an oncoming train as she walked across a
railroad crossing.70 The court stated: “[t]he uncontested facts showed that she did not
have to place herself in a position of peril in order to see the oncoming train and that she
simply did not look in either direction before crossing the tracks.”71 The court concluded
that the railroad was under no further duty to warn roadway users of the presence of the
crossing other than that required by La. R.S. 32:169(A).72 As illustrated by the cases cited
above, the extra statutory duty on a railroad to provide additional warning above and
beyond those mandated by La. R.S. 32:269 is determined under the “dangerous trap”
doctrine.
The evidence presented shows that UP complied with its duty to maintain
adequate sight distances and with La. R.S. 32:169. Watson was not required to place
himself in a position of peril in order to have a view of the oncoming train. Therefore, the
crossing did not constitute a “dangerous trap” and UP was under no further duty to install
additional warning devices. UP’s Motion for Partial Summary Judgment73 on Plaintiffs

68

93-1132 (La. App. 1 Cir. 10/7/94), 647 So. 2d 1140, writ denied, 95-0292 (La. 3/24/95), 651 So. 2d
295.
69
2013-2959 (La. 4/17/14), 137 So. 3d 11.
70
Id. at 12.
71
Id. at 13.
72
Id.
73
Rec. Doc. No. 84-1, p. 4. (See specifically, those claims listed as d-k in UP’s Motion).

40827 
Page 11 of 19 

claims concerning additional warning devices is GRANTED.74
C. Inadequate Audible Warning
Defendant’s second Motion for Partial Summary Judgment75 addresses those
allegations involving the locomotive horn, use thereof, and the failure to instruct
employees about the alleged deficiencies in locomotive audible warning systems.
Specifically, Defendant asserts that it complied with the federal audibility requirements of
49 C.F.R. 229.129. UP also argues that federal law subsumes the issues of sounding the
locomotive horn during emergencies and the instruction of its employees, thus
preempting Plaintiffs claims on those issues.
Federal Preemption of railroad claims is set forth within the Federal Railroad Safety
Act (FRSA).76 The purpose of the FRSA is “to promote safety in all areas of railroad
operations and to reduce railroad-related accidents, and to reduce deaths and injuries to
persons....”77 “[T]he Secretary [of Transportation] is given broad powers to ‘prescribe, as
necessary, appropriate rules, regulations, orders, and standards for all areas of railroad
safety....’”78 “Where a state statute conflicts with, or frustrates, federal law, the former
must give way.”79 The pre-emption provision of 49 U.S.C. 20106 provides in pertinent
part:
(a) National uniformity of regulation.
(1) Laws, regulations, and orders related to railroad safety and laws,
regulations, and orders related to railroad security shall be nationally
74
Plaintiffs also argue that summary judgment is inappropriate because they have alleged UP is liable
under La. C.C. art. 2317.1. However, UP did not move to dismiss those claims in either of its Motions.
Therefore, those claims are not before this Court and are not discussed herein.
75
Rec. Doc. No. 170.
76
49 U.S.C. 20101, et seq.
77
CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 661 (1993).
78
Id. at 662.
79
Id. at 663.

40827 
Page 12 of 19 

uniform to the extent practicable.
(2) A State may adopt or continue in force a law, regulation, or order related
to railroad safety or security until the Secretary of Transportation (with
respect to railroad safety matters), or the Secretary of Homeland Security
(with respect to railroad security matters), prescribes a regulation or issues
an order covering the subject matter of the State requirement. A State may
adopt or continue in force an additional or more stringent law, regulation, or
order related to railroad safety or security when the law, regulation, or order(A) is necessary to eliminate or reduce an essentially local
safety or security hazard;
(B) is not incompatible with a law, regulation, or order of the
United States Government; and
(C) does not unreasonably burden interstate commerce.
(b) Clarification regarding State law causes of action.
(1) Nothing in this section shall be construed to preempt an action under
State law seeking damages for personal injury, death, or property damage
alleging that a party—
(A) has failed to comply with the Federal standard of care
established by a regulation or order issued by the Secretary
of Transportation (with respect to railroad safety matters), or
the Secretary of Homeland Security (with respect to railroad
security matters), covering the subject matter as provided in
subsection (a) of this section;
(B) has failed to comply with its own plan, rule, or standard
that it created pursuant to a regulation or order issued by
either of the Secretaries; or
(C) has failed to comply with a State law, regulation, or order
that is not incompatible with subsection (a)(2).
(2) This subsection shall apply to all pending State law causes of action
arising from events or activities occurring on or after January 18, 2002.
(b) Jurisdiction.--Nothing in this section creates a Federal cause of action
on behalf of an injured party or confers Federal question jurisdiction for
such State law causes of action.
40827 
Page 13 of 19 

In order for Plaintiffs claims to survive pre-emption, they must show that UP failed to
comply with a Federal standard of care; failed to comply with its own plan, rule, or
standard; or failed to comply with State law as set forth above.
Here, both parties concede that 49 C.F.R. 229.129 dictates the audibility
requirements of locomotive horns. The sections applicable to the parties’ contentions are
those governing the audibility of the horn and the accompanying testing procedure. The
Code of Federal Regulations requires the horn equipped on a locomotive to produce a
sound within a minimum level of 96 dBA and a maximum of 110 dBA.80 Additionally, the
CFR provides regulations for the testing of the locomotive horn sound level.81 Plaintiffs
counter the defendant’s preemption defense by contending that the railroad failed to
comply with the federal regulations on horn audibility.82 Specifically at issue are the
following provisions of 49 C.F.R. 229.129(c):
(8) Background noise shall be minimal: the sound level at the test site
immediately before and after each horn sounding event shall be at least 10
dB(A) below the level measured during the horn sounding.
(10) Written reports of locomotive horn testing required by this part shall be
made and shall reflect horn type; the date, place, and manner of testing;
and sound level measurements. These reports, which shall be signed by
the person who performs the test, shall be retained by the railroad, at a
location of its choice, until a subsequent locomotive horn test is completed
and shall be made available, upon request, to FRA as provided by 49 U.S.C.
20107.
In support of its claimed compliance with the statute, Defendant submitted two
tests of the locomotive horn, one dated May 20, 2010,83 and one dated February 20,

80

49 C.F.R. 229.129(a).
49 C.F.R. 229.129(c).
82
29 U.S.C. 20106(b)(1)(A).
83
Rec. Doc. No. 170-7.
81

40827 
Page 14 of 19 

2015, both attested to by Jeff Brinkmeyer.84 The first test shows the average horn sound
level on the lead locomotive involved in the accident, as 101.2 dBA. The second test
shows an average horn sound level of 98.7 dBA. Both tests showed horn sound level
inside the requisite parameters set forth in 29 C.F.R. 229.129.
Plaintiffs argue that the evidence submitted by Defendant does not provide
adequate proof of compliance with the regulations. In support of this contention, Plaintiffs
submit the expert report of Michael F. Seidemann, Ph.D (“Seidemann”).85 In his report,
Seidemann opines that the tests submitted by Defendant lack ambient noise
measurements required by 49 C.F.R. 229.29 (sic) and thus call into question the validity
of the tests.86 Seidemann offers no other reason suggesting that the tests were invalid
and, for purposes of his expert opinion, Seidemann accepted and utilized the results of
the May 20, 2010 test.87 Plaintiffs submit no further evidence in support of their
contention.88
While the C.F.R. does not use the term “ambient noise,” the Court assumes, for
the sake of argument, that Dr. Seidemann was referring to section (c)(8) requiring
background noise during the test to be “minimal.”89 The regulations do not require that
background noise measurement be recorded in order for a report to be valid.90 Moreover,

84

Rec. Doc. No. 170-3.
Plaintiffs cite to the Seidemann report as “Ex. A-2” to their Opposition. The Court notes that the only
document attached as Ex. A to their Opposition is the executed Affidavit of Michael F. Seidemann. However,
the Court received the report of Dr. Seidemann in its previous Opposition and referred to Rec. Doc. No.
187-22 for purposes of this Ruling.
86
Rec. Doc. No. 187-22, p. 34.
87
Id.
88
Plaintiffs also submit evidence that truck drivers cannot hear locomotive horns at the crossing in question.
However, none of this evidence bears any relevance on whether the Defendant complied with 49 C.F.R.
229.129.
89
49 C.F.R. 229.129(c)(8).
90
49 C.F.R. 229.129(c)(10).
85

40827 
Page 15 of 19 

Seidemann offers no support for that conclusion. Such conclusory allegations, without
more, do not create a material issue of fact on whether UP complied with federal
regulations on locomotive horn audibility. Plaintiffs have not presented any evidence that
UP failed to comply with the Federal standard of care established governing horn
audibility. Thus, Defendant’s Motion is GRANTED and Plaintiffs’ claim alleging Defendant
did not comply with 49 C.F.R. 229.129 is dismissed as a matter of law.
Next, Plaintiffs argue that Defendant failed to use an emergency horn sequence in
accordance with the General Code of Operating Rules (“G.C.O.R.”) 5.8.2.91 The federal
requirements for sounding a locomotive horn while at a private crossing are set forth in
49 C.F.R. 222.23(a) which provides in pertinent part:
(a)(1) Notwithstanding any other provision of this part, a locomotive
engineer may sound the locomotive horn to provide a warning to animals,
vehicle operators, pedestrians, trespassers or crews on other trains in an
emergency situation if, in the locomotive engineer's sole judgment, such
action is appropriate in order to prevent imminent injury, death, or property
damage.
(2) Notwithstanding any other provision of this part, including
provisions addressing the establishment of a quiet zone, limits on the length
of time in which a horn may be sounded, or installation of wayside horns
within quiet zones, this part does not preclude the sounding of locomotive
horns in emergency situations, nor does it impose a legal duty to sound the
locomotive horn in such situations.
Thus, federal law places the discretion of how to sound the horn during an emergency
situation with the engineer. Nevertheless, Plaintiffs argue that their claim is not preempted
because Defendant failed to comply with its own plan, rule, or standard that it created on
the use of the emergency horn sequence. Specifically, the Plaintiffs allege that the

91

Thus avoiding preemption on their failure to use the proper emergency horn sequence claim. 29 U.S.C.
20106(b)(1)(B).

40827 
Page 16 of 19 

Defendant violated the G.C.O.R. Rule 5.8.292 when the engineer blew a constant horn for
the last couple of seconds before impact.93 Defendant relies on several cases which
address this very allegation.94 Courts have continually found that, in light of 49 C.F.R.
222.23, claims that engineers failed to comply with G.C.O.R. 5.8.2 are preempted by
federal law.95 Here, just as in Marsh v. Norfolk Southern, Inc., Plaintiffs do not cite to any
federal regulation mandating the use of a succession of short sounds.96 “Thus, federal
law does not impose a legal duty on the engineer to sound the horn.”97 As such, this Court
finds that Plaintiffs’ claim that Defendant failed to use the appropriate emergency horn
sequence is preempted as a matter of law.
Lastly, Plaintiffs claim that Defendant was negligent in failing to instruct its
employees of the deficiencies in train mounted audible warning systems. However,
Plaintiffs have failed to submit summary judgment evidence that any certifications,
training, policies, procedures, and practices of UP employees violated any of the deferral
standards set forth in 49 C.F.R. 240. Section 240 specifies standards for the “eligibility,
training, testing, certification and monitoring of all locomotive engineers.”98 The
regulations include a detailed scheme by which a railroad company must obtain Federal
Railroad Administration (“FRA”) approval of its engineer and conductor certification
programs, including its criteria for continuing education, testing, training, and monitoring

92

Rec. Doc. No. 174-6, p. 5.
Rec. Doc. No. 174-7 at p. 6-9; Rec. Doc. No. 174-8.
94
See Rasmusen v. White, 970 F. Supp. 2d. 807, 817-18 (N.D. Ill. 2013); Marsh v. Norfolk S., Inc., No.
3:14-CV-02331, 2017 WL 1049084, at *13 (M.D. Pa. Mar. 20, 2017); Carter v. Nat'l R.R. Passenger Corp.,
63 F. Supp. 3d 1118, 1157 (N.D. Cal. 2014).
95
Marsh, 2017 WL 1049084, at *13.
96
Id.
97
Id.
98
49 C.F.R. 240.1(b).
93

40827 
Page 17 of 19 

of performance.99 “To prevail on the claim that [federal] regulations have pre-emptive
effect, petitioner must establish more than that they ‘touch upon’ or ‘relate to’ that subject
matter, ... pre-emption will lie only if the federal regulations substantially subsume the
subject matter of the relevant state law.”100 As such, other circuits have held that “federal
training regulations do ‘substantially subsume’ the subject of employee training.”101
Plaintiffs submit no evidence to suggest that Defendant has not complied with
federal operating and training rules. Plaintiffs only submit the railroad crew’s failure to
sound the proper emergency horn sequence or apply the emergency brakes as evidence
of deficient crew training.102 As stated above, Plaintiffs’ allegations that the Defendant
failed to sound the proper emergency horn sequence are preempted as a matter of law.
Further, as in Marsh, Plaintiffs have failed to point to any specific provision of federal
regulations that were breached by the Defendant or show how UP’s employee training
policies are not in compliance.103 Therefore, Plaintiffs have failed to submit summary
judgment evidence to create a material issue of fact, and their claim against Defendant
for alleged inadequate training of railroad employees is preempted as a matter of law.
Summary Judgment is proper in favor of Defendant on all audible warning claims as
stated in Defendant’s Motion.

99

49 C.F.R. 240 and 49 C.F.R. 242.
CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993).
101
Marsh, 2017 WL 1049084, at *11, quoting Union Pac. R. Co. v. California Pub. Utilities Comm'n, 346
F.3d 851, 868 (9th Cir. 2003).
102
Rec. Doc. No. 179 at p. 10.
103
Marsh, 2017 WL 1049084, at *12.
100

40827 
Page 18 of 19 

III.

CONCLUSION
For the reasons set forth above, Defendants’ Motion for Partial Summary

Judgment on Plaintiffs’ Lights and Gates Claims (Rec. Doc. No. 84) and Motion for Partial
Summary Judgment on Plaintiffs’ Inadequate Audible Warning Claims (Rec. Doc. No.
170) are GRANTED.
IT IS SO ORDERED.
Signed in Baton Rouge, Louisiana on September 29, 2017.

S
JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

40827 
Page 19 of 19